(On review from the judgment/order dated 27th September, 1995 passed by Peshawar High Court, Peshawar in C.M.As. Nos.927, 928, 949 and 1044 of 1995).

(a) Customs Act (IV of 1969)‑‑‑-

‑‑‑‑S. 19‑‑‑Sales Tax Act (III of 1990), S.7(2)(1)‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑‑Exemption‑‑‑Leave to appeal was granted by the Supreme Court to re‑examine further the contentions that the office order issued on the basis of Economic Coordination Committee of the Cabinet Division could not be considered as a notification issued in terms of the provisions of the Customs Act, 1969 and therefore, the exemption, which was claimed on the basis of the decision of Economic Coordination Committee of the Cabinet Division could not be given effect to by amending the judgment already pronounced by the High Court in the main Constitutional petition and that if the respondent wanted to enforce the decision of the said Committee, which was based on a separate cause of action they should have filed a separate Constitutional petition and the order already passed by the High Court disposing of the main Constitutional petition could not be amended so as to give effect to the decision of the Committee.

(b) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 18(2)(3) & 20‑‑‑Sales Tax Act (III of 1990), S. 13‑‑ S.R.O. 517(I)/1989, dated‑3‑6‑1989 ‑‑‑Constitution of Pakistan (1973), Sched. IV, Part I, Art. 43‑‑‑Expression "exemption from whole of the customs duty" includes Customs duty as defined under S.18(1) and regulatory duty covered under S.18(2)(3) of the Customs Act, 1969‑‑ Customs duty includes regulatory duty‑‑‑If the assessee was entitled to relief, he could not be non‑suited merely for technical reasons‑‑ Principles.

Abdur Rahim v. Federation of Pakistan PLD 1988 SC 670; Assistant Collector, Customs v. Gadoon Textile Mills Ltd. 1994 SCMR 712 and Pfizer Laboratories Ltd. v. Federation of Pakistan PLD 1998 SC 64 ref.

(c) Interpretation of statutes‑‑‑--

‑-‑‑Word used in a singular form in a provision can also be construed in a plural sense to achieve the object of law.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and Nur Ahmed Khan, Advocate‑in‑Record for Petitioners (in all Petitions).

Wasim Sajjad, Senior Advocate Supreme Court, M. S.Khattak, Advocate‑on‑Record and Mehr Khan Malik, Advocate‑on‑Record for Respondents (in all Petitions).

Date of hearing: 16th October, 2002.

ORDER

IFTIKHAR MUHAMMAD CHAUDHRY, J.‑‑‑These appeals, by leave of the Court, are directed against the order passed by Peshawar High Court, Peshawar. Operative para. from the leave granting order is reproduced hereinbelow:‑‑‑

"The petitioner contended before us that the office order issued on the basis of ECC decision of the Cabinet Division could not be considered as a notification issued in terms of the provisions of the Customs Act and therefore, the exemption, which was claimed on the basis of this decision of ECC of the Cabinet Division, could not be given effect to by amending the judgment already pronounced by the Court in the main writ petitions. It is also contended by the learned counsel for the petitioners that in A any case if the respondents wanted to enforce the decision of the ECC of the Cabinet Division, which was based on a separate cause of action, they should have filed a separate petition the order already passed by the Court disposing of the main writ petitions could not be amended so as to give effect to the above decision. The contentions raised by the learned counsel for the petitioners require further re‑examination and we accordingly grant leave to appeal in all these petitions."

2. Precisely stating the facts of the case are that Federal Government in exercise of its power under section 19 of the CUSLOMS Act, 1969 (IV of 1969) (hereinafter referred to as "the Act, 1969") and subsections (1) and (2) of section 7 of the Sales Tax Act, 1990 (III of 1990) (hereinafter referred to as "the Act, 1990") directed that such raw material and compensation which are imported for the exclusive manufacture of goods by a recognized industrial units located in the approved Industrial State of Gadoon Amazai in the Province of N.‑W.F.P. shall be exempted from whole of the Customs duty and Sales Tax leviable thereon, subject to the conditions mentioned therein, for a period of five years. It may be noted that the Federal Government granted such exemption with a view to provide alternate jobs opportunities to the people of under developed area of Gadoon Amazai Estate, who previously used to cultivate poppy etc. in their fields. Subsequently, exemption from whole of the Customs duty and Sales Tax was withdrawn in 1991, therefore, industrialists of Gadoon Amazai Estate who have suffered considerable losses challenged the withdrawal notification before Peshawar High Court, Peshawar. It so happened that during pendency of writ petitions, the Federal Government gave an offer to the industrialists of Gadoon Amazai Estate of 25 % compensation of the total duty value of raw material imported for one year in pursuance of the decision of Economic Coordination Committee (ECC) of the Cabinet Division, embodied in letter, dated 21st March, 1992. Statedly offer so made by the Federal Government was accepted and industrialists including the respondents withdrew their Constitutional petitions from the Peshawar High Court.

3. Later on Central Board of Revenue (C.B.R.) issued a separate order in each case in exercise of its jurisdiction under section 20 of the Act, 1969 and section 13 of the Sales Tax Act, 1990, wherein 25 % one time compensation (relief) for a period of one year was allowed by extending exemption from the whole of the Custom Duty, Iqra Surcharge and Sales Tax on the imported raw material. It appears that later on, the officials of C.B.R. department i.e. appellant started demanding Regulatory Duty on the pretext that is not covered under the policy of ECC and perhaps their argument was that the expression "exemption from whole of the Customs Duty" does not include levy of Regulatory Duty. The respondent challenged the demand of the appellant for payment of Regulatory Duty before Peshawar High Court, Peshawar by invoking its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan. The writ petitions filed by the respondents were disposed of by delivering common judgment in Writ Petition No. 625 of 1992. As this judgment was silent to the extent of the case of the respondents as nothing was mentioned therein in respect of the relief, which they have claimed, as such they filed the C.M.As. under section 151, C.P.C. read with Article 199 of the Islamic Republic of Pakistan before the Peshawar High Court, Peshawar, which were allowed vide impugned order, dated 5th July, 1995 and 27th September, 1995. Operative para. therefrom is reproduced herein‑

"7. In view of the above orders of the C.B.R. the 25% compensation includes exemption from custom duty which in turn covers regulatory duty. The objection by the respondents Advocate that the petitioners were estopped from claiming the exemption in view of their agreement with the respondents is devoid of substance because the order includes grant of exemption from customs duty. We, therefore, accept these applications and correct the relief part of the judgment in the writ petitions in which these applications have been made to the extent that the petitioners are not liable to pay regulatory duty as prayed for in the writ petitions. No order as to costs."

4. It may be noted that original judgment passed by the Peshawar High Court in Writ Petition No.628 of 1992, dated 20th March, 1995 was not challenged, however, the order passed on application under section 151, C.P.C. read with Article 199 of the Constitution of Islamic Republic of Pakistan has been challenged before this Court, therefore, leave to appeal was granted and ultimately appeals filed by Government of Pakistan and others were allowed on 23rd October, 1998. Against the said order respondents preferred Civil Review Petitions Nos. 176 to 181 of 1998, which were allowed on 2nd March, 2002. As such original appeals have been re‑enlisted for hearing.

5. Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court appeared on behalf of appellants where as the respondents are represented by Mr. Wasim Sajjad, Senior Advocate Supreme Court.

6. Learned counsel for appellants contended:‑‑‑

(i)The decision of ECC of the Cabinet Division, allowing 25 compensation (relief) to the respondents has no validity because no notification by C.B.R. in terms of section 20 of the Act, 1969 was issued.

(ii)The Regulatory Duty in distinct and different from the Customs Duty, therefore, to its extent no compensation/relief was admissible to the respondents in the garb of the expression used in the letter, dated 19th October, 1992 i.e. exemption from the whole of the Customs Duty.

(iii)The respondent, whose cases are covered under the Appeals Nos. 1212, 1214 to 1216 of 1997 have only claimed exemption from Regulatory Duty but they have also been granted the relief of exemption of Customs Duty contrary to law and justice.

7.Learned counsel for respondent contended:‑‑‑

(i)That after the decision of ECC, in each case C.B.R. has issued orders under section 20 of the Act, 1969 and section 13 of the Sales Tax Act, 1990, as such decision of ECC stands fully legalized/validated.

(ii)As per the provisions of section 18(2)(3) of the Act, 1969, the Regulatory Duty falls within the definition of Customs Duty and the expression "exemption from whole of the Customs Duty" includes Regulatory Duty. Reliance in this behalf was placed by him on the cases of Abdur Rahim v. Federation of Pakistan (PLD 1988 SC 670) and Assistant Collector, Customs v. Gadoon Textile Mills Ltd. (1994 SCMR 712).

(iii)The respondents in Appeals Nos. 1212, 1214 and 1216 of 1997 did not abandon the relief of exemption from whole of the Customs Duty in terms of the decision of ECC of the Cabinet Division but in the prayer clause relief to the extent of Regulatory Duty was claimed before 25 % compensation (relief) to the extent of Customs Duty had already been given to them and thereafter instead of releasing their bank guarantees, the respondents were being called upon by the official of the Customs' Department to make the full payment of Regulatory Duty. Even otherwise, relief is granted by the Courts to an aggrieved person after taking into consideration his case as a whole.

8. We have heard the learned counsel for both the parties at a considerable length and have also gone through the impugned judgment carefully.

9. As far as the contention of the learned counsel namely that no order was passed by the C.B.R. to provide legal cover to the decision of ECC for granting 25 % compensation to the respondents/industrialists is concerned, it needs no elaborate discussion because the C.B.R. had separately issued orders in each case under section 20 of the Act, 1969 and section 13 of the Act, 1990.

10. Now turning towards the most important argument raised by the learned counsel for appellants i.e. the Regulatory Duty does not cover within the expression of "exemption from whole of the Customs Duty" because according to the learned counsel Regulatory Duty is undoubtedly a Customs Duty as it has been decided by this Court from time to time and its exemption would have only been admissible if in the letter of C.B.R. the expression instead of "exemption from the whole of Customs Duty" may have been used in plural sense i.e. "exemption from the whole of Customs Duties" and because in the expression "Customs Duty" is in singular form, therefore, it. cannot be construed to be in plural form.

It may be seen that this Court in the case of Abdur Rahim (ibid) has held that the Regulatory Duty falls within the definition of Customs Duty and is covered by Article 43, Schedule IV of the Constitution of Islamic Republic of Pakistan. Therefore, we are of the opinion that the expression "Exemption from whole of the Customs Duty" includes the Customs Duty as defined under section 18(1) and Regulatory Duty covered under subsections (2) and (3) of section 18 of the Act, 1969. It would be worth to mention here that exactly this proposition came for examination before this Court in the case of Assistant Collector, Customs (ibid), wherein while interpreting the word "whole" it was held that "Customs Duty" includes the "Regulatory Duty". This proposition can be examined from another angle namely if Legislature intended to levy Regulatory Duty, then it would have instead of using the expression "exemption from whole of the Customs Duty" may have use expression "exemption from Customs Duty" as defined under section 18(1) read with First Schedule of the Act, 1969. In this context, it may not be out of place to note that in S.R.O. No. 517(I)/89, dated 3rd June, 1989, exemption was granted from the whole of Customs Duties. Therefore, on its withdrawal, a compensation to the extent of 25 % ought to have been given in respect of the whole of Customs Duty including Regulatory Duty and if the argument so raised by the learned counsel for appellant is p accepted that no exemption has been granted on the Regulatory Duty, it would create anomalous position, because on the one hand originally Government granted exemption from whole of the Customs Duty but the 25 % compensation (relief) had been withheld on the Regulatory Duty, which does not appear to be the intention of decision of ECC. As such, we are of the opinion that using the word "Customs Duty" in a singular form, instead of plural form, would not mean that Regulatory Duty is not included in it. It needs no detailed discussion that at a time the word used in a singular form can also construed in a plural sense to achieve the object of the law. It is to be noted that in the instant case the Federal Government in fact has agreed to grant compensation (relief), meaning thereby to share with the losses which the industrialists have suffered on withdrawal of the notification, dated 3rd June, 1989, therefore, such instrument has to be construed strictly and is to be interpreted in favour of the subject in whose favour a right has accrued. Thus, we are of the Opinion that the expression "exemption from whole of the Customs Duty" also includes the Regulatory Duty.

11. Adverting towards the next arguments of the learned counsel for appellants, suffice to observe that in some of the cases relief was claimed the extent of the exemption from Regulatory Duty but it does not mean that they have abandoned their right to claim exemption from the a customs Duty. In this behalf if memos. of petitions are read as a whole carefully, one can come to conclusion safely because exemption from the Customs Duty to the extent of 25% one time, one raw material had been extended to them and now they were being persuaded to make the payment of Regulatory Duty, therefore, they confined their claim only to this extent. Even otherwise, for such technical reason, the relief of grant 1 of exemption from the whole of the Customs Duty including Regulatory Duty cannot be withheld because if the respondents are entitled for a relief, they cannot be non‑suited merely for technical reasons. Reference in this behalf can be made to the case of Pfizer Laboratories Ltd. v. Federation of Pakistan (PLD 1998 SC 64).

No other point has been argued by the parties counsel.

Thus for the foregoing reasons appeals are dismissed, leaving the parties to bear their own costs.

H.B.T./G‑157/SCAppeals dismissed.